The Law of Freedom and Bondage in the United States, 1권

$ 56. Such a right may attach to all domiciled persons, or to all alien persons. A certain condition or status of natural persons, whether consisting in rights and duties of a legal person, or in a chattel condition, may, whether determined by positive legislation or by a judicial application of natural reason, be the effect of either municipal (internal), or of international law, or of both; the extent, or application to persons, of a law originating in positive legislation, depending upon that legislation only; and there being no necessity for supposing that the dictates of natural reason on this point will be the same, in rules of action applying to alien persons, as in those relating to the native or domiciled inhabitants of any supposed national jurisdiction.

$ 57. Or the state, or supreme power, may attribute any individual right or rights to each natural person within its domain, whether domiciled or alien. In this case, the law attributing those rights, would, in the jurisprudence of that state, be a universal principle in respect to its personal extent ; that is, in applying equally to each natural person. In this case, the individual rights so attributed are not only distinguishable from relative rights by existing in respect to the whole community, independently of relations towards specific persons and things, (ante, $ 40,) but they may be called absolute, or primordial, or natural rights, because the law attributes them to natural persons simply as such, or as beings possessing the human form and nature, and as an intrinsic element of their human character.

$ 58. The extent of any principle or rule affecting the status of private persons is always subject to the supreme legislative power. But in the absence of such legislation, it must be determined by judicial criteria of natural reason as before set forth. (SS 29 to 36.) Rules or principles determining the condition or status of natural persons may be derived from universal jurisprudence. But it is to be borne in mind, that, in being so derived into the jurisprudence of any one state, they do not, therefore, have the universal personal extent which is above spoken of. This extent of a personal law being dependent upon the will of the state in which it is applied; while a uni

versal character, ascribed to any principle, has reference to its juridical source or origin ; that is, depends upon the fact of its having been applied by all nations, or the greater part, (ante, SS 36–38 :) which application may have been in respect to a greater or less proportion of persons.

The different extent of laws to natural persons according to their subjection at different times to different national jurisdictions, and the mode in which, by the application of international law to the relations of private persons, universal jurisprudence may be distinctly recognized, and local or territorial laws, affecting condition or status, may receive universal personal extent, will be considered in the following chapter.

NOTE.—The following extract from an Essay by Henry Sumner Maine, LL. D., On the Conception of Sovereignty, and its importance in International Law-Papers read before the Juridical Society, London, June, 1855—p. 26, may, with some readers, serve to justify expressions in the text, which may at first appear to be an attempt after a useless novelty of expression. Speaking of Austin's Province of Jurisprudence Determined, Dr. Maine says, p. 29: “And here, as I have alluded to Mr. Austin's treatise, I trust I may be pardoned for saying that I know no reason, but one, why it has not long since dispelled the indifference to the systematic study of Jurisprudence which was so eloquently lamented at the inaugural meeting of this society. [By Sir Richard Bethell, p. 1, of the same tract.] The one drawback on its usefulness has been its style which is such as to repel a superficial reader, and not to attract even a patient one; but it would be foolish not to admit that there are abundant excuses for the peculiarity. England has no literature of jurisprudence; consequently, the English language comprises no true juristical phraseology. Our English law terms are strictly terms of art, and it would be absurd to attempt to strain them beyond their welldefined, long accepted, and technical meaning. The language, then, which must be used for questions of universal jurisprudence is popular language, infected with all the vices of common speech, vague, figurative and general. In employing it for such an examination of these questions as is appropriate to closet study, it is necessary to be constantly limiting and qualifying it, to be perpetually weeding it of metaphor, and to be carefully cleaning it from the misleading suggestions which lurk in mere arrangements of words and collocations of phrase. Among the numberless advantages which may be looked for from an extended study of Roman law, I am not sure that the highest will not be the introduction of a terminology, neither too rigid for employment upon points of the philosophy of law, nor too lax and elastic for their lucid and accurate discussion.”

CHAPTER II.

FARTHER CONSIDERATION OF THE NATURE OF PRIVATE INTER

NATIONAL LAW: ITS ORIGIN AND APPLICATION. ITS EFFECT UPON CONDITIONS OF FREEDOM AND BONDAGE.

$ 59. In the definition of international law which was given in the first chapter, it was shown to have the name of a laro only by an improper use of the term, when considered as a rule of action for states in their several entity or personality; since, though it consists of a recognized body of rules distinct from the municipal (national) law of each state or nation, it is not prescribed to them by a superior, but operates upon them as political persons, or upon private persons within their respective domain, only by their own several allowance or consent. This being the legal or juridical view of the obligation of that law; whatever may be its source in a divine rule of action, or law of nature. When, therefore, private international law operates upon private persons, in any national jurisdiction, by the allowance of the supreme power of the state, it has, in respect to sach persons, the same sanction and force as the municipal (national) law, and, as to all persons who are distinct from the state or sovereign, it has equally the effect and authority of law in the proper meaning of the term. The distinction of private international law from private municipal (internal) law arising, not from a difference in the nature of their authority over individuals, but in the character of the relations which they severally affect.

$ 60. When considering, in the first chapter, the mode in which positive law becomes known as the law of some one

state or country ( 48), the international law was described as being divided into two portions. The first consisting of laws in the secondary sense only, necessary axioms, or definitions of the political existence of states,- entering into both international and municipal (national) law. The second, consisting of laws in the primary sense-rules of action—which may, or may not, exist, or be observed, between specified states. The first portion, which, as was remarked in the same place, cor. responds with that which is sometimes called “the natural, or necessary law of nations,” but which indicates at the same time relations of private persons, as well as the relations of states, may indeed be taken to be antecedent to, and independent of, the power of any one state: but the rules of action which compose the second portion, whatever authority they may have in natural reason, become law for private individuals only by being enforced by the power which promulgates the municipal (national) law of that jurisdiction or state in which the person may be found.

$ 61. If, then, it is asked—wherein does private international law consist, as a rule of action in any one national jurisdiction, distinct from the municipal (internal) law of that jurisdiction?

—the answer must be found by ascertaining the effect of the necessary axiomatic principles or definitions composing the first part of the international law, as before described, upon private persons and upon things; and next—the actual allowance or creation of rights and obligations of private persons, as the incidents of legal relations which have an international character from the fact that the agents and objects of action presupposed in them are persons, or persons and things, not altogether or exclusively under the juridical power of a single nation or state : those persons, or those persons and things being discriminated, by the application of the axiomatic principles above spoken of, as persons subject to different jurisdictions, such persons being alien, or native, domiciled, or temporary subjects in reference to some one jurisdiction or forum.

$ 62. The terms or phrases by which the nature or mode of existence of states or nations is set forth or defined, are so generally known in the maxims of public law, that it is not neces

sary here to attempt any separate exposition of them: though it may become necessary hereafter to consider particularly the meaning of some of those terms, as they may be used in stating international or municipal (internal) rules of action.

The general principles or maxims which are contained in the definition of these terms, are set forth most at large by writers who treat of public international law, regarded as a rule of imperfect obligation (ante, $ 11,) of which states or nations are the subjects; though they are equally presupposed in rules determining the relations of private persons towards those states or nations, and having the force of law in the strict sense-i.e., public municipal (national) law.

$ 63. Upon an examination of these maxims, as stated by writers on public law, it will be seen that there are three which may be taken for the most general or fundamental; and which are in fact but one and the same definition of sovereignty ;-or they are assertions, in different forms, of the essential character of sovereignty ; or, again,-descriptions of sovereign national power in three different relations. The first being a definition of sovereign national power considered, as it may be said, absolutely,-or in relation to its own materials, or constituent parts; without reference to the existence of any other manifestation or embodiment of that kind of power: which may be thus stated :

I. The power of every state, or nation, is absolute, self-dependent, or supreme, within that space, or territory, which it possesses, or occupies, as its own domain, and over all persons and things therein.

The second maxim is but the same assertion expressed relatively to the co-existence of several states, or nations; recognizing the limitation of each by the fact of the equally inde pendent existence of the others; this is, that,

II. The sovereign power of one state, or nation, is not to be recognized as sovereign, or has no existence, as such, beyond its cron domain, or territory, or within the space, or territory, which constitutes the domain of another possessor of national sovereignty.

$ 64. These two maxims, when taken for maxims of international law, belong to the first portion of international law,